Protect the witness

The Swathi murder case in Chennai must trigger a move to enact strong witness protection laws and schemes.

(Left) CCTV footage of the suspect outside the station. He was seen arguing with Swathi before attacking her

Tamil Nadu is in a state of shock after the bloody and gruesome murder of Swathi, a 24-year old techie, which took place in broad daylight while she was waiting on a platform in a Chennai suburban train station some days ago. Equally shocking was what transpired in the two to three hours after she was attacked with an aruval (billhook). None of the bystanders — and there were many — went to help the young woman when she was attacked by a man, who we now know as Ram Kumar, a Facebook acquaintance-turned-stalker. Neither did they take the dying woman to a hospital. Along with Swathi, collective civic duty too died that day in Chennai.

Why are the public so passive or disinclined to intervene when a serious crime occurs? The reasons for non-intervention range from fear of reprisals by the assailants and their families, to harassment and intimidation by the police starting with the investigation. Furthermore, the process of giving witness statements and having to depose in the court and be subjected to cross-examination by ruthless defence advocates can be a brutal and bruising experience for a witness.

In the Swathi murder, police have secured just one witness, a shopkeeper at the railway station. Media reports indicate that the investigators held a test identification parade (TIP) in the prison premises. This runs contrary to the Supreme Court directions in the Shaji vs Kerala case, where such identification parades have been disregarded in cases with high media exposure. Evidence from the TIP is most likely to be challenged in court.

Being a witness in the police investigation and judicial process in India, even in sensational cases, requires a person to have a strong sense of civic duty as well as stamina to withstand the consequent social and economic impact. For instance, a witness can’t recover the loss of income from attending court proceedings, which often get adjourned without notice or explanation. There is also stigma attached to being associated with criminal cases in any capacity. In some cases, public witnesses are subject to coercion or inducements to help the accused. It is, thus, incumbent upon the government to create an environment which will allow bystanders to help victims of crime and depose freely in courts.

One way to address this problem is to provide significant legal protection to witnesses, so that they are treated with respect and compassion during the investigation as well as the trial. In the UK, witnesses who are deemed “intimidated” due to fear or distressed about testifying in court get special protection during the police investigation and the trial process. The “special measures” include automatic right of witness “anonymity” in murder cases involving firearms and knife, which means any witness who comes forward can be confident of giving evidence knowing that the accused and his family cannot trace him or her, thereby reducing the scope for intimidation and harassment of the witness. During the trial, the court too can offer a wide variety of “special measures” so that an intimidated witness can give evidence behind a screen, by way of video-link or “in camera” so that she is protected from public view and the accused. Further, the court could also impose restriction on media reporting, so that the name of the witnesses is protected. In extreme and serious cases, where the witness is judged to be at the risk of serious harm, the police has a special department known as the “UK Protected Persons Service” for the safety and well-being of a witness and her family.

In comparison, India has been slow to implement witness protection measures. Among the states, Delhi government alone has notified, as recently as in January 2016, a witness protection scheme. The guidelines notified by the Union government, as per the Supreme Court directions in the Save Life vs Union of India case, calls for protecting any “good samaritan” who chooses to “assist an injured person in distress on the road”. However, it seems unlikely that these guidelines cover bystanders who extend assistance to victims of murders or crimes, which do not take place on the road.

The Law Commission of India, most recently in its 198th report, has made extensive recommendations for the enactment of witness protection schemes, but governments have failed to act decisively. Two amendments made to the Code of Criminal Procedure, in sections 195A and 275, deal with penalties for threatening witnesses and deposing evidence via video. However, governments need to devise legislative enactments, which will provide comprehensive protection to bystanders who are witness to public crimes.

Nirbhaya served as a wake-up call for authorities to review criminal laws governing sexual assault and rape. Similarly, the Swathi murder must trigger a move to enact strong witness protection laws and schemes. In their absence, the public may not have the confidence to step forward and perform their civic duty when they witness a crime. If vulnerable victims of crime are to stand any chance of securing justice, then witnesses must be secure in the knowledge that the police and judiciary will protect them from fear and intimidation.

Ganesan is a barrister and Shanmughasundaram is a lawyer and spokesperson for the DMK.